More than 100 countries across the world have criminalized marital rape; India stands in the dubious company of the likes of Saudi Arabia and central African countries in this regard.
For the past several weeks, Delhi High Court is finally grappling to arrive at a conclusion in the matter of Writ Petition 284 of 2015: the Public Interest Litigation filed by a batch of petitioners against the Union of India, challenging the exception provided in the Indian Penal Code, Section 375, exempting forced sexual intercourse by a man with his own wife from the offence of rape, the wife not being less than 15 years of age. In an earlier separate case, the Supreme Court has read down the age limit to 18 years of age but surprisingly left the larger issue of marital rape untouched.
But legalistic quibbles appear to dominate the current battle rather than simple factual recognition of the unexceptional fundamental right of the woman to her bodily integrity and dignity, whatever her age or marital status. This case is one of an assertion of sexual autonomy that demands protection of bodily integrity, that is freedom from force and oppression and not that of sexual autonomy per se or freedom to licentiously do with the body whatever the individual pleases. Two very different concepts of sexual autonomy—freedom from and freedom to—that must be clearly differentiated and should elicit different attitudes.
Can 21st century Independent India possibly allow continuation of an exception based on archaic colonial laws encoding the concept of the wife as the “property” of her husband? Recent decades—which have seen the most horrific explosion of both sexual and domestic violence in this country—have also seen considerable enlightened change in laws governing sexual violence and crime, notwithstanding the huge gaps remaining in their interpretation and implementation. Yet, marital rape of an adult woman by her husband still remains on the State’s statutes. Is not this a surprisingly chauvinistic privileging of male sexual desire and rights that is sadly enabling of an overall environment of male impunity, totally reprehensible in the contested marital context and not without much wider impact? Equally, violative of the basic constitutional right of equality of all citizens?
Rape—to take by force, to sexually violate—is listed by the Geneva Convention as an “outrage upon personal dignity”, “an extreme of humiliating and degrading treatment” on par with torture and threat to life, a crime against humanity when perpetrated on scale in war or in peace. Eminent jurisprudence emanating from the International Criminal Tribunals constituted for former Yugoslavia and Rwanda has ruled: “Sexual violence strikes at the very core of human dignity and physical integrity.” It underscores that rape inflicts the severe physical and psychological pain and suffering that characterizes torture. Can we be serious in considering that this can be accepted as a natural happening in ANY circumstance whatsoever?
But the Solicitor General of India, instead of moving forthwith to condemn the offending exemption and support its removal on behalf of a government repeatedly committing itself to women’s empowerment, is procrastinating. He argues that India must not “blindly follow the West” by criminalizing marital rape and has quoted “unique problems due to various factors like lack of literacy, lack of financial empowerment of a majority of females, mindset of society, vast diversity, poverty etc”. He calls it a question of “women’s dignity” and “family values” since Indian society regards marriage as a sacred sacrament and criminalizing marital rape would destabilize the institution that is a basic building block of the society. He further buttresses arguments by citing misuse of Section 498A on account of dowry harassment and fears corroborative medical evidence of bodily injury “may be rendered useless … circumstantial and corroborative evidence will become futile in case of marital rape making it difficult to determine when consent was withdrawn”.
Really? In the first instance, more than 100 countries across the world—not just the “liberal” West—have criminalized marital rape; India stands in the dubious company of the likes of Saudi Arabia and central African countries in this regard. Then, the very factors quoted as our “unique problems” actually make it imperative for the state to protect the interest of the vulnerable and change the societal mindset that accords subservient situation to the large mass of women. As for the misuse of another section of the law by some women—and the possibility that this could happen with the elimination of this exemption—can this ever be an argument to retain a law that is oppressive of all married women and makes a mockery of a woman’s bodily integrity that is at the core of her dignity? The SG’s perception of “women’s dignity” beats comprehension.
However, not to be dismissed is the contention that Indian society overwhelmingly considers the institution of marriage as a sacred sacrament and a valuable building block of society that must not be destabilized. This is a sterling attribute in the flummox of our turbulent modern times. But isn’t it precisely because Indian society still overwhelmingly considers marriage as a sacrament that ideally alone should bring about the union of a man and a woman that it is important to ensure the institution is nurtured and safeguarded from oppressions that hollow it? Equally, imperative to make it in full consonance with the guarantees of gender equality enshrined in our Constitution?
Fortunately, diverse enlightened religious perspectives recognizing core human intimacy to be inextricably interwoven within the institution of marriage also proclaim the same as a web of mutual rights, duties and obligations discharged with mutual respect, love and honour. What place can force possibly have in such thinking but one to be shunned? Leave aside feminist assertions for consent, religious thinking that accords the physical sexual act as a sacred aspect in the union of two persons, thus squarely invests the most intimate of intimacies within mutual understanding and consent—gained by love and respect. Marriage ceremonies of almost all hues enjoin upon both the man and woman to work towards creating conditions that bring about desired core intimacy, not its gratification by brutal force. In case of irretrievable breakdown of the marriage that prevents such happening, the recourse for the man should be through the civil remedy of divorce not rape.
Those of us who have worked a lifetime with women out in the field know only too well how often and how many wives are daily stripped of their dignity and bodily integrity at the hands of husbands returning home drunk, on drugs, or just in a misguided effort to regain self-esteem trampled upon in their own outer spheres and who have the mindset that sex with their wives is a birth right, to be taken any which way. Worth recalling is that well-known axiom: “That some men can rape is the intimidation that keeps all women in fear.”
Bodily integrity is not a “Western” fad, but the most basic human right of every woman and an idea whose time is now long past due. The right course ahead would be for the government/Supreme Court to speedily move Suo Moto to set right this anomaly of marital rape.
Rami Chhabra is a media veteran, who pioneered the first feminist columns in the national press. She has served the country in various capacities, including in GoI and as Member, National Population Commission.